Your property encroached? Here’s how to respond

Real estate, both residential and commercial, have gone through a significant overhaul since the enactment of the Real Estate (Regulation and Development) Act, 2016. However, one issue that still plagues real estate in India and terrifies property owners, is the encroachment of their land by the local power lord, “bahubali”, broker, or anyone with stealth, force, predominantly in the absence of the property owner. Majority of these cases emanate on vacant plots or in under-constructed areas. However, it is not uncommon to hear such cases of encroachment of locked apartments in urban areas or by neighbors while constructing their own property.In such matters, broadly there can be the following two scenarios:
a) Party encroaching your property claims that the property is theirs and not yours
b) Party is Illegally trespassing or land grabbing

a) Party encroaching your property claims that it is theirs and not yours

In this case, the best legal remedy is a Title Suit. A title suit is a declaration of right over a particular property. A title suit is a civil suit in nature and its procedures are regulated by the Civil Procedure Code, 1908. This suit will be filed in a civil court and the advocate who specializes in property disputes could be of enormous help to represent you in the matter. The right advocate could help you retrieve municipal and revenue related records that form a consequential part of filing.Documents required for filing a Title Suit:
1. Sale deed which affirms the right of property
2. Revenue records, Revenue Department's annual and five-yearly records
3. Certificate for Land rights issues by the revenue authorities
4. Lease deed in the situation of a lease issued by the government resulting in possession
5. Proof of property tax deposits or electricity bills or water bills
6. In the case of inheritance, a proof of will is to be attached
7. Deed of partition in case of the ancestral property along with court decree
8. Gift deed in the case of giftTitle suit, being a civil suit, consist of following stages:
1. Filing of the plaint: This document would typically generate a suit no.
Title Suit No._/20
High Court of Delhi
2. Issuing of Summons: A summon would include the following
Court Room No.
In the Delhi High Court
Title Suit No./20
3. Appearance of parties to the dispute: This involves calling of parties during the case trial and asking relevant questions related to the case
a. If the parties do not show up after issuing of summons, then the court issues a warrant against the party.
b. If the party to the suit is not clear, then an ex parte order (order passed after hearing one party only) is given.
4. Interlocutory proceedings involve an application to the Court in any suit, appeal or proceeding already instituted in such Court, other than a proceeding for execution of a decree or order.
5. Written statement: Includes the documents related to the case and the property of dispute.
a. Every written statement is attached with an affidavit that provides the authenticity of the document produced. In case the produced documents are fake or fabricated then experts are called within the court to clear out the authenticity of document and if it is proved that document is fake, then the person who produces the documents must face the sanctions.
6. Examination: The most necessary stage of the trial in the advocate asks questions from the witnesses related to the case.
7. Framing of the issues involved: After the examination of witness, the advocates frame issues for the case on which the case trial will go on.
8. Documents required
a. Property papers
b. Affidavit of each document etc.
9. Inspection and discovery of the documents: Each document related to the property under dispute is to be produced and proper inspection is to be done of the same.
10. Producing the required documents: Documents related to property are produced in the court such as sale deed, payment receipts, etc.
11. Examination and cross-examination of witness: After the submission of the necessary documents advocate asks questions from the witnesses.
12. Arguments: Consists of the statements that both the advocates state in the court of law.
13. Judgment
14. Appeal, review, revision of the judgment passed: If the party is not satisfied with the judgement of the court, then the party has the right to appeal in higher bench or file a review petition of the judgement passed.
15. Decree execution

b) Party is Illegally trespassing or land grabbing

In this case, the best legal remedy is to file a complaint at the police station of that concerned area. Trespassing is a punishable offense under the India Penal Code, 1860 sections 441-462. According to section 441 of Indian Penal Code 1860, “criminal trespass means, whoever enters into or upon property in possession of another with intent to commit an offense or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offense. Having lawfully entered into or upon such property, remains there with the intention of taking unauthorized possession or making unauthorized use of such property and fails to withdraw from such property or its possession or use, when called upon to do so by that other person by notice in writing, duly served on him.”Section-441 provides for the basic punishment of trespass and states that, a person can fall under the ambit of criminal trespass and will be sentenced with such punishments. Whoever commits criminal trespass shall be punishable with the imprisonment of either description for a term which may extend to 3 months, or with fine which may extend to Rs. 500 or with both.
Other section 442-462 of the India Penal Code, 1860 outline specific kinds of trespass and the punishments which can be awarded to the person who commits the same. The amount of punishment depends entirely on the discretion of the Judge based on their assessment of the applicable section.

Associated legislation:

Real Estate in India is governed by multiple laws that vary across states. The major laws which govern the real estate in India are-
1. Real Estate (Regulation and Development) Act, 2016 (RERA)
2. Transfer of Property Act, 1882
3. Indian Registration Act, 1908
4. Indian Stamp Act, 1899
5. Indian Easement Act, 1882
6. Indian Contract Act, 1872
7. Land Revenue Codes

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